State v. . Parnell , 214 N.C. 467 ( 1938 )

Criminal prosecution tried upon indictment charging the defendant with the murder of one Jane Fink.

Verdict: Guilty of murder in the first degree.

Judgment: Death by asphyxiation.

Defendant appeals. At the August Term, 1938, Cabarrus Superior Court, the defendant herein, Baxter Parnell, was tried upon indictment charging him with the murder of one Jane Fink, which resulted in a conviction of murder in the first degree and sentence of death. From the judgment thus entered, the defendant gave notice of appeal to the Supreme Court and by consent was allowed sixty days within which to make out and serve his statement of case on appeal, and the solicitor was given thirty days thereafter to prepare and file exceptions or counter case. Service of defendant's "case on appeal and assignments of error" was accepted by the solicitor on 1 October, 1938. This was filed in the Supreme court as the "case on I appeal" on 4 October, 1938, without agreement of the solicitor or "settlement" by the judge. C. S., 643 and 644; S. v. Ray, 206 N.C. 736, 175 S.E. 109; Carter v. Bryant, 199 N.C. 704,155 S.E. 602. Nor had sufficient time then elapsed for it to be "deemed approved" under the statute. C. S., 643; S. v. Ray, supra.

Thereafter, on 19 October, 1938, upon the call of the docket from the Fifteenth District, the district to which the appeal belongs, the Attorney-General lodged a motion to dismiss the appeal for failure to file brief and for imperfections in the record. A counter-motion for time to cure the defects in the transcript, to file brief, etc., was allowed because of illness of counsel which necessitated the appointment of additional counsel to prosecute the appeal. S. v. Moore, 210 N.C. 459,187 S.E. 586.

Five assignments of error, all directed to the charge, are attached to the "case on appeal" — considering it now as "deemed approved" — but these assignments are based on no exceptions. Rawls v. Lupton,193 N.C. 428, 137 S.E. 175. Only exceptive assignments of error are availing on appeal. In re Beard, 202 N.C. 661, 163 S.E. 748; S. v.Freeze, 170 N.C. 710, 86 S.E. 1000.

Notwithstanding the insufficiency of the assignments of error to raise the questions sought to be presented, as the defendant's life is at stake, we have examined the matters therein pointed out and find them to be without substantial merit. S. v. Moore, 210 N.C. 686, 188 S.E. 421. The case seems to have been tried in strict conformity to the law appertaining to the evidence and the charge.

The failure to have a "case on appeal" or proper assignments of error, does not perforce work a dismissal of the appeal. Parrish v. Hartman,212 N.C. 248, 193 S.E. 18; McMahan v. R. R., 203 N.C. 805,167 S.E. 225; Roberts v. Bus Co., 198 N.C. 779, 153 S.E. 398. Non constat that error may not appear on the face of the record proper. Edwardsv. Perry, 208 N.C. 252, 179 S.E. 892; Wallace v. Salisbury, 147 N.C. 58,60 S.E. 713.

The motion to affirm will be allowed. S. v. Dawkins, 190 N.C. 443,129 S.E. 814; McNeil v. R. R., 117 N.C. 642, 23 S.E. 268.

Affirmed.